Tuesday, February 24, 2009

Abuse of Copyright Criminal Enforcement

In many jurisdictions, criminal enforcement of IP provisions plays a
subordinate role in practice than civil enforcement. However, this
would not be the case in the jurisdictions where the criminal sanction
on copyright infringement does not require a "commercial scale." I
hardly believe the requirement of "commercial scale" makes things
different if it is defined so broadly as to cover any acts "for
purposes of commercial advantage or private financial gain" (like
ACTA) and the financial gain is defined to include "receipt or
expectation of anything of value." (e.g., Art. 18.10:26, FN 33 in
US-Korea FTA).

According to a press release last week by the Korea Supreme
Prosecutors' Office, the number of criminal complaints based on the
copyright infringement has skyrocketed to 90,979 in 2008 from 25,027
in 2007 and 18,227 in 2006 (see Table below). Among these figures,
juveniles are revealed to be an ever increasing target of the criminal
enforcement. Now copyright infringement becomes one of the most
frequently occurred cases in cases of violation of economic laws.

IIPA would argue that this is due to "the ubiquity of online
infringement throughout Korea's highly networked digital marketplace."
(IIPA's 2008 Special 301 Report). However, this explanation fails to
provide an account for the rapid increase in 2007 and 2008, and
especially for the faster rise of juvenile cases. To my view, the main
reasons of the increase are twofold.

First, regardless of purpose or scale, any unauthorized acts of
reproduction or distribution of copyrighted works may invoke a
criminal liability under the Korea Copyright Act. This paves the way
to abuse or misuse of criminal enforcement.

Second, the copyright holders (mainly music and film industries) and
law firms acting for them actually misused the enforcement provisions.
They send letters to suspected individuals (mostly Internet end users)
threatening a criminal action. In exchange of not taking the criminal
action, they ask a cash settlement. Copyright holders are capable of
using the threat of criminal action as leverage for the settlement
negotiation as the initiation of criminal procedure is subject to a
complaint by the rightholder. Presumably, more than 80% cases have
been solved by the cash settlement, which means that the complaints
received by the Prosecutors' Office should be multiplied by four or
five when counting the number of the abusive threat.

As clear from the Table below, most of the complaints are decided by
the Prosecutors not to prosecute (20 times more than the cases
actually brought to the court). This indicates that most of the threat
of criminal sanction is abusive and misused. For instance, Mr. Cho
(31) received a letter from the police simply because he used one
piece of music for his blog. He was requested to pay one million KRW
for the settlement with a law firm which was unclear to legitimately
represent the copyright holder. There are lots of instances similar to
the Cho's case. One tragic example is Song's case. He was a high
school student and got a summon from the police about his downloading
online novels. Being fearful of punishment, he committed suicide in
November 2007.





Complains (Total)


25,027 (+137%)

90,979 (+364%)

Complaint (Juveniles)


2,832 (+464%)

2,3470 (+829%)

Decision of the Prosecution

- Indictment


1,663 (+111%)

4,003 (+240%)

- Non-Prosecution Disposition


21,808 (+139%)

83,862 (+385%)

- Etc. (incl. Stay of indictment)


1,508 (-15%)

3,150 (+209%)

Source: The Korea Supreme Prosecutors' Office, Press Release, Feb. 2009 - http://www.spo.go.kr/user.tdf?a=user.board.BoardApp&c=2002&seq=716&board_id=sppo_press&cp=1&pg=1&npp=10&catmenu=020201&chungcd=01000000

As one of the ways to solve this problem, the Korean government
launched an online campaign for cleaning up the Internet. The site
(www.portalcopyright.com) run by the Minister of Justice in
collaboration with major Internet portals is decorated with slogans
"don't copy," "don't download," and "don't edit."

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